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HUNTER v. SECURITIES EXCH. COMMN.

March 15, 1995

ROBERT W. HUNTER
v.
SECURITIES EXCHANGE COMMISSION, ARTHUR LEVITT, JOHN DOE SUPERVISORS OF JOHN HEFFERNAN, and JOHN HEFFERNAN



The opinion of the court was delivered by: JAY C. WALDMAN

 WALDMAN, J.

 I. BACKGROUND

 This suit by plaintiff against the Securities and Exchange Commission ("SEC"), its chairman and several of its agents arises from an insider trading investigation of plaintiff by the agency. Plaintiff asserts a Bivens claim against John Heffernan, an SEC investigator who allegedly violated plaintiff's constitutional due process and privacy rights during the course of the investigation. *fn1" Plaintiff also seeks to enjoin the securities investigation which he contends has been tainted by the alleged unconstitutional conduct.

 Presently before the court is defendants' motion to dismiss plaintiff's amended complaint for failure to state a cognizable claim and lack of subject matter jurisdiction regarding the injunctive claim. *fn2"

 II. STANDARD OF LAW

 The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of a complaint. See Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). In deciding a motion to dismiss for failure to state a claim, the court must "accept as true all the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." See Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Dismissal is not appropriate unless it clearly appears that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Robb v. Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). A complaint may be dismissed when the facts pled and the reasonable inferences drawn therefrom are legally insufficient to support the relief sought. See Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir. 1988).

 III. FACTS

 The following pertinent facts appear from plaintiff's amended complaint. On March 24, 1994, the SEC issued a formal order authorizing an investigation of whether plaintiff and others committed securities fraud by trading in the securities of Independence Bancorp, Inc. ("Independence") while in possession of material, non-public information, specifically the impending merger of Independence with Corestates Financial Corporation. Plaintiff was a director of Independence. Four days before the merger, plaintiff purchased 20,000 shares of Independence stock and two days later, he purchased another 20,000 shares. Within a month after the merger, plaintiff sold these shares for a substantial profit.

 In the course of the investigation, defendant Heffernan interviewed plaintiff's then-girlfriend, "Jane Doe," regarding her knowledge of plaintiff's trading in Independence stock. Thereafter, Mr. Heffernan became romantically involved with Jane Doe who then terminated her relationship with plaintiff.

 Plaintiff alleges that Mr. Heffernan aided Doe in her effort to extort money from plaintiff. Doe told Montgomery County law enforcement officials that plaintiff had sexually molested her 11 year old daughter over a period of four years. Plaintiff was arrested and charged with sex-related crimes. He was bound over for trial on several of these charges. Doe then filed a civil suit against plaintiff related to the molestation charges and made a demand of $ 3,000,000 to settle out of court.

 In conducting interviews with friends, relatives and acquaintances of plaintiff about his trading of Independence stock, Mr. Heffernan also sought information regarding plaintiff's relationship with Jane Doe and her daughter. Mr. Heffernan also acquired "confidential non-public information" about plaintiff during the investigation from third parties, including documents subpoenaed from financial institutions regarding plaintiff's assets and holdings, which he disclosed to Jane Doe for use in connection with her civil suit.

 IV. DISCUSSION

 A. Bivens Action

 Plaintiff alleges that Mr. Heffernan's abuse of his investigative authority violated plaintiff's Fifth Amendment due process rights and ...


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